C-275/94

Case C-275/94 Roger Van der Linden v Berufsgenossenschaft der Feinmechanik und Elektrotechnik (Reference for a preliminary rulingfrom the Hof van Cassatie, Belgium) «(Brussels Convention – Interpretation of Article 47(1) – Documents to be produced by a party applying for enforcement – Obligation to produce proof of service of the judgment delivered – Possibility of producing proof of service after the application has been made)» Opinion of Advocate General Fennelly delivered on 30 January 1996      Judgment of the Court (Fifth Chamber), 14 March 1996      Summary of the Judgment Convention on Jurisdiction and the Enforcement of Judgments – Recognition and enforcement – Procedure – Application for an enforcement order – Documents to be produced – Service of the judgment for which an enforcement order is sought – Production after the application has been lodged – Whether permissible – Conditions (Brussels Convention of 27 September 1968, Art. 47(1)) Article 47(1) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as amended by the Convention of 9 October 1978 on the Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland, is to be interpreted as meaning that, where the domestic procedural rules of the State in which application is made so permit, proof of service of the judgment delivered in the State of origin may be produced after the application has been made, in particular during the course of appeal proceedings subsequently brought by the party against whom enforcement is sought, provided that that party is given a reasonable period of time in which to satisfy the judgment voluntarily and that the party seeking enforcement bears all costs unnecessarily incurred. JUDGMENT OF THE COURT (Fifth Chamber) 14 March 1996 (1) ((Brussels Convention – Interpretation of Article 47(1) – Documents to be produced by a party applying for enforcement – Obligation to produce proof of service of the judgment delivered – Possibility of producing proof of service after the application has been made)) In Case C-275/94, REFERENCE to the Court under the Protocol of 3 June 1971 on the interpretation by the Court of Justice of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, by the Hof van Cassatie van Belgïe for a preliminary ruling in the proceedings pending before that court between Roger Van der Linden and Berufsgenossenschaft der Feinmechanik und Elektrotechnik on the interpretation of Article 47(1) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (OJ 1978 L 304, p. 17), as amended by the Convention of 9 October 1978 on the Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland (OJ 1978 L 304, p. 1 and ─ in its amended form ─ p. 77), THE COURT (Fifth Chamber),, composed of: D.A.O. Edward, President of the Chamber, J.-P. Puissochet, J.C. Moitinho de Almeida (Rapporteur), C. Gulmann and P. Jann, Judges, Advocate General: N. Fennelly, Registrar: R. Grass, after considering the written observations submitted on behalf of: ─ Mr Van der Linden, by H. Geinger, of the Brussels Bar, ─ the Berufsgenossenschaft der Feinmechanik und Elektrotechnik, by F. Fazzi-De Clercq, of the Ghent Bar, ─ the German Government, by B. Lohr, Ministerialdirigent in the Federal Justice Ministry, acting as Agent, ─ the Austrian Government, by F. Cede, Ambassador in the Federal Ministry of Foreign Affairs, acting as Agent, ─ the Commission of the European Communities, by P. van Nuffel, of its Legal Service, acting as Agent, having regard to the report of the Judge-Rapporteur, after hearing the Opinion of the Advocate General at the sitting on 30 January 1996, gives the following Judgment By order of 30 September 1994, received at the Court on 11 October 1994, the Hof van Cassatie van Belgïe (Belgian Court of Cassation) referred to the Court for a preliminary ruling, under the Protocol of 3 June 1971 on the interpretation by the Court of Justice of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, two questions on the interpretation of Article 47(1) of that convention (OJ 1978 L 304, p. 17), as amended by the Convention of 9 October 1978 on the accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland (OJ 1978 L 304, p. 1 and ─ in its amended form ─ p. 77, hereinafter the Convention). Those questions were raised in proceedings between Mr Van der Linden, a Belgian national, at the material time engaged in the resale of motor vehicles at Blankenberge (Belgium), and the Berufsgenossenschaft der Feinmechanik und Elektrotechnik, a German insurance company (hereinafter the insurer). Those proceedings concern the enforcement in Belgium of two judgments given in default on 25 May and 1 September 1976 by the Landgericht (Regional Court) Bonn, ordering Mr Van der Linden to pay the insurer, first, the sum of DM 45 428.25 together with interest at the rate of 4% from 12 March 1976 and, second, the sum of DM 2 190.75 together with interest at the rate of 4% from 20 August 1976. The first of those sums represents the medical expenses incurred as a result of injuries caused to Mr Rudolf Lempges, a policy-holder with the insurer, in a collision which occurred in Germany on 5 February 1973 between his vehicle and that of Mr Van der Linden, which was being driven by a third person. The second sum represents the legal costs incurred in those proceedings. On 2 February 1982, upon application by the insurer, those judgments were rendered enforceable in Belgium by decision of the Rechtbank van Eerste Aanleg (Court of First Instance), Bruges (hereinafter the Rechtbank). Mr Van der Linden lodged an appeal against that decision. He complained, in particular, that the Rechtbank had allowed the application for enforcement despite the fact that, contrary to the requirements of Article 47(1) of the Convention, no document had been produced to show that the default judgments had been served and were enforceable. By judgment of 30 June 1993 the Rechtbank declared Mr Van der Linden's appeal admissible but unfounded. It found that, although Mr Van der Linden had probably been entitled to plead that no proof of service of the default judgments of 25 May and 1 September 1976 had been produced when the ex parte application was made, the insurer had proceeded on 6 January 1987 (that is to say, during the course of the appeal proceedings) to re-serve the judgments in accordance with the rules of Belgian domestic law. According to the Rechtbank, Article 47(1) of the Convention had thus been complied with, so that the judgment challenged should be upheld, even though it had been given on the basis of incomplete documentation. Mr Van der Linden appealed against that decision to the Hof van Cassatie van Belgïe. He contended that, as a matter of law, the Rechtbank could not decide that the insurer could still regularize the procedure by effecting service during the course of the appeal proceedings, since it follows from Articles 46(1) and 47(1) of the Convention that a copy of the judgment and the record of service must be lodged at the same time as the application for enforcement of the judgment, and that service of the judgment must be effected before the application for enforcement is lodged. The Hof van Cassatie van Belgïe decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling: 1. Must Article 47(1) of the Convention of 27 September 1968 between the Member States of the European Economic Community on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters be interpreted as meaning that the court before which enforcement is sought may order the enforcement of a judgment given in another State only if, either together with the application or before a decision is given on the application, the document referred to in Article 47(1) and in particular proof of service are also produced? 2. If the answer to Question 1 is in the negative must that article be interpreted as meaning that, notwithstanding provisions of national law, the requirement to produce the document is not satisfied where the decision is served only after the application was made and the document evidencing service was drawn up and produced only after a decision was given by the court before which enforcement is sought on the application and the party against whom enforcement is sought has lodged an appeal? By those questions, the national court is essentially asking whether Article 47(1) of the Convention is to be interpreted as meaning that proof of service of the judgment of which enforcement is sought can be produced after the application has been lodged, in particular during the course of appeal proceedings subsequently brought by the party against whom that application is made. The third paragraph of Article 33 of the Convention reads: The documents referred to in Articles 46 and 47 shall be attached to the application, whereas Article 47(1) provides: A party applying for enforcement shall also produce: (1) documents which establish that, according to the law of the State of origin, the judgment is enforceable and has been served ... . Article 48 of the Convention further provides: If the documents specified in point 2 of Articles 46 and 47 are not produced, the court may specify a time for their production, accept equivalent documents or, if it considers that it has sufficient information before it, dispense with their production. Mr Van der Linden and the Austrian Government maintain that those provisions clearly show that proof of service of the judgment must be produced, at the latest, when the application is lodged. According to Mr Van der Linden, such an interpretation is confirmed by Article 48, since that article makes no provision for the setting of a time-limit, the acceptance of equivalent documents or the exemption of the applicant from his obligation to produce the documents specified in Article 47(1), whereas it expressly provides for that possibility in the case of the documents referred to in Articles 46(2) and 47(2). That view cannot be accepted. Although, according to the third paragraph of Article 33, the documents referred to in Articles 46 and 47 must be attached to the application, that does not mean that the domestic procedural rules, to which the first paragraph of Article 33 refers as regards determination of the time when the application is to be made and of the form which it is to take, may not provide for the procedure to be regularized by production of proof of service after the application has been lodged, provided that the objective pursued by the Convention in the third paragraph of Article 33 and Article 47(1) is respected. In that regard, the experts' report on the Convention (OJ 1979 C 59, p. 1, at p. 55) states that the purpose of serving the judgment on the defendant is to inform him of the judgment given against him and to give him the opportunity to satisfy it voluntarily before enforcement can be applied for. Domestic rules of procedure allowing the court to which application is made to take into consideration, in ex parte proceedings, proof that the judgment has been served are not incompatible with such an objective, provided that the party against whom enforcement is sought, who is not represented at this stage of proceedings, is given a reasonable period of time in which to satisfy the judgment voluntarily and that the party seeking enforcement bears all costs unnecessarily incurred. Contrary to the arguments advanced by Mr Van der Linden, that interpretation of the Convention is not invalidated by Article 48 of the Convention. Whilst it is true that that article, which allows the court to specify a time for the production of certain documents, does not relate to proof of service as provided for in Article 47(1), it also provides that the court may accept equivalent documents. However, that last possibility is excluded as regards proof of service of the judgment of which enforcement is sought. As the Advocate General observes in point 18 of his Opinion, Article 48 is merely a special provision whose scope is limited to the sphere which it governs, and which cannot therefore attach any other limitations to the general principle that domestic procedural rules which respect the essential requirements of the Convention will normally be applicable. It should be added that this reasoning also applies in relation to the possibility of regularizing the application by producing proof of service in the course of appeal proceedings subsequently brought by the party against whom execution was sought. At that stage, the enforcement procedure is inter partes , thereby affording an additional safeguard for the party against whom enforcement is sought. In those circumstances, the reply to the national court must be that Article 47(1) of the Convention is to be interpreted as meaning that, where the domestic procedural rules so permit, proof of service of the judgment may be produced after the application has been made, in particular during the course of appeal proceedings subsequently brought by the party against whom enforcement is sought, provided that that party is given a reasonable period of time in which to satisfy the judgment voluntarily and that the party seeking enforcement bears all costs unnecessarily incurred. Costs The costs incurred by the German and Austrian Governments and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court. On those grounds, THE COURT (Fifth Chamber) in answer to the questions referred to it by the Hof van Cassatie van Belgïe by order of 30 September 1994, hereby rules: Edward Puissochet Moitinho de Almeida Gulmann Jann Delivered in open court in Luxembourg on 14 March 1996. R. Grass D.A.O. Edward Registrar President of the Fifth Chamber – Language of the case: Dutch.